Green v. Ferguson

• Citation: 184 S.W.2d 790
• Decision Date: 09 January 1945
• Docket Number: No. 26688.,26688.
• Parties: GREEN v. FERGUSON et al.
• Court: Missouri Court of Appeals

184 S.W.2d 790

GREEN v. FERGUSON et al.

No. 26688.

St. Louis Court of Appeals. Missouri.

January 9, 1945.

Rehearing Denied February 7, 1945.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be reported in State Reports."

Suit by Stanley M. Green against Evelyn Ferguson, as an individual and as executrix of the estate of D. C. Green, deceased, and others, to contest the will of deceased. Motion to strike the cause from the docket on ground that suit was not commenced within one year after date of probate of the will was sustained, plaintiff's motion for new trial was overruled, and plaintiff appeals.

Affirmed.

Joseph Boxerman, of St. Louis, and Frank W. Jenny, of Union, for appellant.

James L. Anding, of Pacific, for respondent Evelyn Ferguson.

SUTTON, Commissioner.

This is a suit to contest the will of D. C. Green. The will was admitted to probate in the Probate Court of Franklin County, on December 31, 1942. Plaintiff in his petition, which was filed on July 6, 1943, sets out the will in full, and alleges as grounds for contesting the will the undue influence of defendant Evelyn Ferguson and the mental incapacity of the testator. The testator made three separate and distinct devises or bequests to Evelyn Ferguson and appointed her as executrix of the will, and in each instance designated her as his adopted daughter. The other defendants are devisees under the will. So is the plaintiff.

Plaintiff alleges in his petition that he is a brother of the testator, but does not allege, or state any facts to show, that he has any interest in the probate of the will or that he would receive anything from the testator's estate if there were no will. No summons or other process was ever issued in the case.

On March 20th, during the March term, 1944, defendant Evelyn Ferguson filed her motion to strike the cause from the docket, alleging as ground therefor that the suit was not commenced within one year after the date of the probate of the will.

Upon the hearing of the motion, on March 24, 1944, defendant Evelyn Ferguson introduced as a witness Henry F. Rohlfing, the clerk of the court, who testified that the petition of plaintiff was presented to him in his office on July 6, 1943, by Joseph Boxerman, plaintiff's attorney; that Mr. Boxerman told him that he would send him the addresses of the defendants some time later so that he could issue proper summons; that Mr. Boxerman told him specifically that he should not issue summons until he had heard further from him; that Mr. Boxerman said that he would send him the addresses and notify him later. He further testified that on March 17th or 18th he received a letter from Mr. Boxerman giving him the addresses of the defendants and directions to issue summons.

The court sustained the motion and entered judgment striking the petition from the files and the cause from the docket.

On March 28th plaintiff filed his motion for a new trial. Upon the hearing of this motion Mr. Boxerman testified on behalf of plaintiff that he did not have the addresses of the defendants at the time he filed the petition and told the clerk that he would make every effort to obtain the addresses and mail them to him; that he at no time instructed the court not to issue summons; that he was always of the impression and opinion that it was the duty of the clerk to issue summons regardless of whether the addresses were furnished or not. He further testified that on September 15, 1943, he received from the clerk the following letter, which was put in evidence:

"On July 6, 1943, you filed a petition for a will contest in the case of Stanley M. Green v. Evelyn Ferguson, etc. At that time you informed me that you would furnish the addresses of defendants in order that I might issue the proper summons, but to date I have failed to hear from you. Our next term of Court convenes November 15, 1943."

Plaintiff put in evidence a letter dated March 16, 1944, which Mr. Boxerman testified he mailed to the clerk. In this letter he gave the names and addresses of defendants and asked the clerk to issue proper summons for them.

The motion for a new trial was overruled.

Plaintiff appeals.

No objection has been made, either in the trial court or here, to the method of procedure adopted in arriving at the disposal of the cause.

Section 538, R.S.1939, Mo.R.S.A., found in the statute relating to wills, reads as follows:

"If any person interested in the probate of any will shall appear within one year after the date of the probate or rejection thereof, and, by petition to the circuit court of the county, contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up whether the writing produced be the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court."

Section 876, found in the statute relating to civil procedure, reads as follows:

"Suits may be instituted in courts of record, except when the statute law of this state otherwise provides, either, first, by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or causes of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or, second, by filing such petition in such office, and suing out thereon a writ of summons against the person or of attachment against the property of the defendant. The filing of a petition in a court of record, or a statement or account before a court not of record, and suing out of process therein, shall be taken and deemed the commencement of a suit."

It is well settled in this state that the filing of the petition, without...